Monthly Archives

May 2013

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The International Administrative Law Centre of Excellence launches its quarterly newsletter

By | IAL, International Administrative Law, News | No Comments

Today, the International Administrative Law Centre of Excellence  issued its first electronic quarterly newsletter to 289 individuals interested in improving the employment law of the international organisations.  The Newsletter’s editor, Alex Haines, Counsel at Bretton Woods Law, said:

“This is a very exciting moment for the Centre of Excellence. The Centre’s Executive Committee and all of us at Bretton Woods Law hope that the Centre’s members and, indeed, non-members find the newsletter to be interesting and informative, and we have already begun work on edition 2, which should be out at the beginning of September.”

Join the Bretton Woods Law International Administrative Law Centre of Excellence today

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Inter-American Development Bank abolishes its Conciliation Committee

By | IAL, International Administrative Law, News | No Comments

Last month, the Inter-American Development Bank (‘IADB’) brought into force a revised version of its Staff Rule PE-323, governing conflict resolution between staff members and the Bank.  The amended provisions have the effect of abolishing the Conciliation Committee, the Bank’s fact-finding tribunal of first instance, in favour of a system of compulsory mediation, after which staff members may proceed directly to the Administrative Tribunal of the IADB.

The reform is controversial for many reasons, not least because it replaces an inquisitorial fact-finding tribunal with a mediator charged with seeking consensus.  Moreover, in the new system the tribunal of first instance becomes the Administrative Tribunal, from which there is no avenue of appeal, contrary to the norms of international administrative law and, indeed, public international law generally.

Loss of an avenue of appeal
The principal consequence of the reform is that the Conciliation Committee has been dissolved, meaning that the fact-finding tribunal has been removed from the conflict resolution system schematic.

The right of appeal is recognised as an ‘essential safeguard in law’ in international organisations by ILOAT, reflected in the case of Bangasser and others v ILO, (1994) judgment 1330, and reiterated in several other ILOAT judgments since.  A ‘right to appeal’, albeit in criminal cases, is also declared in article 8.2(h), the Pact of San Jose, and echoed in article 2 of Protocol 7 of the European Convention of Human Rights.  The fact that it is enshrined in international conventions is indicative of its importance within any justice system, domestic or international.  As an essential legal safeguard, it could certainly be argued that it is a fundamental and essential term of employment for international civil servants.  It would follow that any move to reform or revoke the right would be a regulatory decision which could not be implemented except with the consent of the staff members, meaning that a failure to do so would render the revised Staff Rule PE-323 unlawful.

Aside from the unlawfulness of the revocation of the right of appeal, the Conciliation Committee’s erstwhile mission has been conferred on a body that is accustomed to dealing with appeals.  Many Administrative Tribunals will not interfere with findings of fact unless they are manifestly erroneous or unreasonable, although the IADB Administrative Tribunal does indeed have the power to hear an appeal de novo.  Staff members would hitherto have had two opportunities to have their cases heard.  With the introduction of the new provisions, the Administrative Tribunal has become a ‘one-stop shop’, thus depriving staff members of the possibility of having their cases reopened and re-examined.  Its new mission as a tribunal of first instance will require a considerable adjustment of its present mandate, statute and its philosophy when approaching cases in order to reflect the evolution of its function.

Pitfalls of mediation
Besides the loss of an avenue of appeal, compulsory mediation may transpire to be counter-productive when attempting to resolve staff disputes because of its mandatory nature.  While mediation can be an exceedingly useful tool if both parties are willing to negotiate, its success depends on the parties coming together voluntarily.  The imposition of compulsory mediation is not conducive to amicable settlements and is wholly inappropriate for cases where the issue turns on a purely legal argument, such as the interpretation of a contract term that will apply across the organisation.  It is also inappropriate where the parties are quite evidently unable to reach consensus on any of the issues in the case, particularly where there have already been attempts to negotiate or settle the claim directly between the staff member and the Bank prior to initiating litigation.  In this scenario, mediation will result in the incurring of further costs and unnecessary delay to both parties.  Although a vetting procedure appears to be in place at the IADB, any Mediation Secretary will need to be extremely vigilant in ensuring that the right cases progress to mediation.

Even if there is scope for consensus, the impartiality of the mediator is fundamental.  A mediator’s remit is often misunderstood by staff members.  A common, but erroneous, perception is that mediators actively participate in the formulation of the terms of a settlement.  The opposite is in fact true; mediators cannot suggest settlement terms to the parties and are under no duty to ensure that settlements are fair or just for either party.  The mediator will be under no duty to assist them, as it would conflict with the mediator’s duty of impartiality.  Quite often, staff members are not entitled to legal representation at mediation sessions, and the IADB is no exception.  As the Bank will benefit from unlimited legal advice from its own in-house department, the resulting inequality of arms leaves a staff member exposed to not receiving the fairest possible settlement through the mediation process, uninformed as to his or her rights and afraid to assert them.  Without a lawyer present, it can be highly intimidating for a staff member to come face to face with his or her manager or colleague, especially where a case revolves around harassment.  It can also be disheartening if the person across the table is one who has already refused to grant an administrative remedy to the staff member, such as a Director of Human Resources.

Reforms such as this one have led to the absurd situation whereby a staff member must file a ‘request’ for compulsory conciliation; a contradiction in terms which appears to be lost on the organisations advocating this solution.

A full copy of the revised IADB Staff Rule PE-323 can be found on the IADB website here:  http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=37223957

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The Reform of the UN System of Administration of Justice – the UNRWA example

By | Centre of Excellence, IAL, International Administrative Law, News | No Comments

The Reform of the United Nations Administration of Justice System (“UNAJS”), which came into effect on 1st July 2009, was long overdue and has brought with it some significant improvements.  Certain aspects however, long petitioned by staff associations, IAL practioners and academics, and recommended by the Redesign Panel on the UNSAJ, have not yet been achieved.

In its Resolution 61/261 of 4th April 2007, the General Assembly criticised the UNAJS by stating that is was “slow, cumbersome, ineffective and lacking in professionalism, and that the current system of administrative review is flawed”. It decided “to establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of staff members and the accountability of managers and staff members alike”.

The overhaul of the administration of justice system was especially important for the United Nations Relief and Works Agency for Palestinian Refugees (“UNRWA”).  Over the years, many cases were brought within its justice system by its employees, including a significant number of cases brought before the former UN Administrative Tribunal in New York (“old UNAT”).  The large volume of cases within UNRWA’s internal justice system is hardly surprising considering that UNRWA employs over 29,000 local staff, and nearly 120 international staff members.

The structure of the previous formal justice system within the UN, including UNRWA, provided for a one-tier system.  The main bodies in which the formal processes of the internal justice system were initiated (the Joint Appeals Board and the Joint Disciplinary Committee), conducted peer reviews which made recommendations on the dispute; these were then submitted to the UN’s Secretary-General (or the Commissioner-General in the case of UNRWA) who made the final decision. This decision could then be challenged by the staff member before the old UNAT.

In line with the UN’s new two-tier system of administration of justice and in agreement with the UN Secretary-General, UNRWA established its own first instance Dispute Tribunal, the UNRWADT in Amman, effective from 1st June 2010. A Special Agreement dated 11th December 2009 was concluded between the UN and UNRWA’s Commissioner-General by which UNRWA accepted the terms of the jurisdiction of the new UNAT.

As a transitional measure, appeals by UNRWA staff members following a Joint Appeals Board report were receivable by the UNAT if the final decision on the appeal was taken by the Commissioner General on or after 1 July 2009.  The UNRWADT, through a single judge, has so far rendered 92 judgments in nearly three years which is a significant number. 44 applications were dismissed on receivability grounds, 39 applications were dismissed on the merits, two judgments were interpreted, one judgment was on remedies, five applications were successful and one was partially successful.

In an attempt to rebalance the inequality of arms between international organisations and their employees, the General Assembly in its resolution 63/253, decided that professional legal staff in the Office of Staff Legal Assistance shall assist staff members in processing claims through the formal system of administration of justice. In this respect, UNRWA has created the position of Legal Officer, based at UNRWA’s HQ in Amman, who advises staff on employment matters and who may assist in preparing staff submissions to the Agency, the UNRWADT and the UNAT. It remains to be seen how effective this assistance can be considering the vast number of UNRWA’s local staff.

Compared to the International Labour Organisation Administrative Tribunal (“ILOAT”), the potential remedies before the UNDT and UNAT are few in number.   Although the Tribunals have the power to order rescission of the contested decision and specific performance, in cases where the contested administrative decision concerns appointment, promotion or termination, the Tribunal must indicate the amount of compensation that “the respondent may elect to pay as an alternative to the rescission of the contested decision or specific performance ordered” (Article 9 of the UN Appeals Tribunal’s Statute). In practice, the Secretary-General almost always opts for compensation instead of changing the wrongful decision.  In contrast to this, the ILOAT decides itself whether or not rescission or specific performance is possible, and if not it awards compensation. The UNAT judged this to be “a glaring example of injustice and discrimination between the two categories of staff members working under the United Nations system”.  This situation is particularly problematic in the case of UNRWA’s local staff, given the employment opportunities, or lack thereof, for many Palestinian Refugees.

Staff associations play an important role in protecting the interests of staff members of international organisations. The Redesign Panel recommended that because staff members are sometimes reluctant to enter the formal justice system for fear of reprisal, Staff Associations should have the right to bring actions independently to enforce the Staff Rules and Regulations.  This recommendation has not yet been taken up and Staff Associations only have a right to submit a “friend of the court” brief (Article 17 of the UN Appeals Tribunal’s Rules of Procedure).

It remains to be seen how efficient the new UN internal justice system will be for UN and UNRWA staff members.  At Bretton Woods Law, we will continue fighting to improve this system in the context of the Bretton Woods Law International Administrative Law Centre of Excellence.